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Friday, December 21, 2012

What is the classification of pure administrative function?

Pure
administrative function can be divided into three categories:

(a)
Administrative discretion

(b)
Ministerial action

(c)
Administrative instruction

Administrative discretion:

In
Layman’s language, discretion means choosing from
amongst the various available alternatives without reference to nay
predetermined criterion, no matter how fanciful that choice may be. A person in
his will has discretion to dispose his property in any manner, no matter how
arbitrary and fanciful that may be. But when the word discretion is qualified
by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in
this sense means choosing from amongst the various available alternatives but
with reference to the rules or reason and justice and not according to personal
whims. Such exercise is not to be arbitrary, vague and fanciful but legal and
regular. (Lord Halsbury).

CJ.
Coke says-
Discretion is a science or understanding to discern between falsity and truth,
between right and wrong and not to do according to will and private affection.

The
problem of administrative discretion is complex. It is true that in any
intensive form of government cannot function without the exercise of some
discretion by the officials. It is necessary not only for individualization of
the administrative power but also because it is humanly impossible to lay down
a rule for every conceivable eventuality in the complex art of modern
government. But it is equally true that absolute discretion is a ruthless
master. It is more destructive of freedom than any of man’s other inventions (Justice
Doglus). There for, there has been a constant conflict between the claims
of administration to an absolute discretion and the claims of subjects to a
reasonable exercise of it.

Ministerial action:

Ministerial
function is that function of agency which is taken as a matter of duty imposed
upon it by the law devoid of any discretion or judgment. Therefore, a
ministerial action involves the performance of a definite duty I respect of
which there is no choice, no wish and no freedom. Here, the high authority
dictates and lower authority carries out. Collection of revenue may be one such
ministerial action. Furthermore, if the statute requires that the agency shall
open a bank account in a particular bank or shall prepare the annual report to
be placed on the table of the minister, such action of opening the bank account
and the preparation of the annual report shall be classified as ministerial.

When
an administrative agency is acting ministerially it has no power to consult its
own wishes but when it is acting administratively its standards are subjective
and it follows its own wishes.

Administrative instruction:

Administrative
instruction means power to issue instruction flow from the general executive
power of the administration. In any intensive form of government the
desirability and efficacy of administrative instruction issued by the superior
administrative authorities to their subordinates cannot be over emphasized.‘Administrative
instruction’ is a most efficacious technique for achieving some kind of
uniformity in administrative discretion and to manipulate in an area which is
new and dynamic. These instructions also give a desired flexibility to the
administration devoid of technicalities of the rule-making process.

Administrative
instruction may be specific or general and directory or mandatory. Its type
depends largely on the provisions of the statute which authorizes the
administrative agencies to issue instructions. The instructions which are
generally issued not under any statutory authority but under the general power
of administration are considered as directory and hence are unenforceable not
having the force of law.

If
administrative instructions have no force of law but if these are consistently
followed for a long time government cannot depart from it at its own sweet will
without rational justification.